Six Takeaways from Obergefell v. Hodges

As I was brushing my teeth last Friday morning, Ben charged into the bathroom waving his phone at me. He was singing, laughing, and doing the twist (his version of the happy dance). Despite not being able to actually read what was in front of me, I knew what happened.

The Supreme Court held that statutes barring same-sex couples from marrying are unconstitutional, giving the right for same-sex couples nationwide to marry. I’m still struggling to take it all in, even after reading hoards of news analysis, articles, and the opinion itself. We’ve witnessed a monumental turning point in history that will forever stand as the moment “same-sex marriage” and “gay marriage” became marriage. It’s pretty amazing.

As always, I have my takeaways.

1. The Justices didn’t create law: One major sticking point that I keep hearing form opponents of the decision is that the Supreme Court overstepped its bounds by creating law like a Legislature. You may have heard something like “Why do we need the Legislature, if the Court can create law.” The Court didn’t create law. In other words, it didn’t enact some provision that allows same-sex couples to get married. It held that laws prohibiting marriage between persons of the same sex violated their Constitutional rights. That’s an important distinction because of how our “checks and balances” system of government works. Under the separation of powers, part of the Court’s role is to makes sure laws created by the Legislature and executed by the President don’t overreach. And this has been the Court’s job for centuries.

2. The history of marriage is one of both continuity and change: Justice Anthony Kennedy wrote the majority opinion and starts by highlighting how marriage has evolved over time (pg. 11). The point goes against the concept of defining “traditional marriage” as one thing. Marriage used to be political, religious, and financial arrangements between families. And even when it was recognized as a voluntary contract between a man and a woman, marriage still continued to evolve as women gained more political power and rights. Kennedy says, “These new insights have strengthened, not weakened, the institution of marriage” (pg. 12). This most recent insight should strengthen it as well. You see this constant theme throughout the opinion of “informed understanding” helping evolve history and tradition.

3. The right to marry is protected by the Constitution: Kennedy used Four principles and traditions to demonstrate marriage is a fundamental right under the Constitution and applies “in equal force to same sex couples”(pg. 17). These premises include: 1) the right to personal choice regarding marriage is inherent in the concept of individual autonomy. 2) The right to marry supports a two person union unlike any other in its importance to the committed individuals. 3) Marriage safeguards children and families and thus draws meanings from related rights of childrearing , procreation, and education. 4) The Nation’s traditions make it clear that marriage is a keystone of social order. Under all of these points, Kennedy shows how same-sex unions promote each of these principles and do not differ from opposite sex unions in each respect. He concludes, “…the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection clauses of the Fourteenth Amendment couples of the same-sex may not be deprived that liberty” (pg 27). Notably missing was much talk about the type of scrutiny required under this analysis, as was the case in Windsor, which many detractors find problematic. More on this point Friday.

4. The opposing arguments have no weight: Kennedy also picks apart the counter arguments brought up by the respondents, including the statement that this type of decision should be left to the Legislature. He agrees that democracy is the “appropriate process for change, so long as that process does not abridge fundamental rights” (pg. 29). He adds, “The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right.” Simply put, minorities whose fundamental rights are being violated shouldn’t have to wait on the Legislature to stop violations of those rights.

5. It is so ordered: The last paragraph of the Opinion is pretty moving. If you haven’t read it yet, here it is: “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than they once were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right. The judgment of the Court of Appeals for the Sixth Circuit is reversed. It is so ordered.”

6. Some states still not granting marriage licenses: This decision won’t eliminate homophobia or immediately establish equality for same-sex couples. We can see that in states like Texas, Kentucky, Louisiana and Mississippi that are still refusing to grant marriage licenses despite the Supreme Court’s decision. However, many believe this stance is just political maneuvering for the upcoming Presidential election and those resisting the change will comply shortly.

I also have some takeaways from the dissenting opinions, which I will get to on Friday. In the meantime, if you’re interested in reading the entire opinion, you can do so here.

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Brian Thompson Financial LLC (“BTF”), is a Registered investment Adviser in the State of Illinois. Based in Chicago, BTF focuses specifically on serving the LGBTQ community locally and nationwide. Brian Thompson, JD, CFP® is a proud member of NAPFA, XY Planning Network and Pride Planners.